Back
KERALA HIGH COURT
Pareed Pillay & Balakrishnan, JJ.
Phasalu -Petitioner
versus
State of Kerala -Respondent
Cri. M.p. No. 753 of 1991 in Cri. Appeal No.
131 of 1991
Decided on 15-7-1991
Held: From a reading of Section 32A of the N.D.P.S. Act it is not possible to hold that the interdict regarding suspension of the sentence is confined only to the Government and not to the appellate Court. The section does not confine its ambit to the suspension of sentence by the Government. The section does not make any distinction between the suspension of sentence by the appellate Court and the Government. Of course, appellate Court's power of suspension of sentence is limited to a case where the convicted accused has filed appeal. Suspension of sentence by the appellate court can only be till the appeal is disposed of whereas suspension of sentence by the Government is not thus limited. Except that difference, section 32A does not indicate of any difference regarding suspension of sentence by the appellate Court or the Government. The argument that section 32A has no application to the power of the appellate Court regarding suspension of sentence cannot be accepted. It is the well settled legal principle that words, phrases and sentences of statute should ordinarily be understood in their natural, ordinary, popular and grammatical meaning unless it would lead to an absurd result or the object of the statute indicates a totally different meaning. Even if two interpretations are possible, the one which fits in with the object of the statute has to be adopted. As held by the Supreme Co un in Vijayawada Municipal Council v. A.P.S.E. Board (supra), the salutary rule of construction rests upon the doctrine that a statute like any other document, must be read as a whole to extract its meaning and, intendment correctly. If section 32A is held applicable only to suspension of sentence by the Government, it would lead to a ridiculous and anomalous position. Thus, where a person is accused of an offence under the Act section 37 makes the provision for the grant of bail very arduous whereas when a person is convicted he would not face that much difficulty in getting bail. While interpreting a section, it is elementary that it should be considered in the backdrop of the entire statute and a particular section cannot be read in isolation. Section 32A interdicts suspension of the sentence and as no differentiation is made with regard to that power to be exercised either by the Government or the Court, the argument that the Court is vested with the power to suspend the sentence and the section has no application cannot be sustained. (Para 5)
(as per Pareed Pillay,J.)
Held: Section 32A also is not intended to curtail the powers of the High Court under section 389 of the Code. Section 32A is to abrogate the powers of the Central or state Government vested in them under sections 432 and 433 of the Code of Criminal Procedure, 1973. That is evident from the words used in section 32A of the Act. Under sections 432 and 433 of the Code, powers are conferred on the appropriate governments to suspend or remit sentences. Similar powers are not conferred on the High Court. Under section 386 of the Code the power of the appellate court in an appeal from conviction include only reversing the finding and sentence, acquit or discharge the accused or order him to be retried by a court of competent jurisdiction subordinate to such appellate court or alter the finding and maintaining the sentence or without altering the finding alter the nature and extent of the sentence, but not to enhance the same. There is no power of suspension, remission or commutation as such conferred on the High Court, except to suspend the sentence temporarily pending appeal as postulated under Section 389 of the Code. (Para 6) (as per Balakrishnan, J.)
ORDER
Pareed Pillay, J.- The short question that arises for consideration is whether an accused who is convicted and sentenced under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the "N.D.P.S. Act") other than under section 27 is entitled to suspension of sentence pending appeal.
2. Contention of the petitioner is that under section 389 of the Code of Criminal Procedure this Court has wide powers to suspend the sentence under the N.D.P.S. Act during the pendency of the appeal notwithstanding section 32A of the Act. Section 389(1) provides that pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also if he is in confinement, that he may be released on bail or on his own bond. Counsel pointed out that section 37 of the N.D.P.S. Act has no application to a case where the accused has already been convicted and when he files an appeal and moves for suspension of the sentence. Section 27(1)(b) postulates notice to the Public Prosecutor on any motion for bail. Section 37 (1) (b) (ii) provides that after giving notice to the Public prosecutor bail can be granted if Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that is not likely to commit any offence while on bail. Section 37 contains a non-obstinate clause to the effect that it overrides the provisions for bail under the Cr. P.c. In Narcotics Control Bureau v. Kishan Lal1, the Supreme Court held that the powers to grant bail under section 439 are subject to the limitations contained in the amended Section 37 of the N.D.P.S. Act and restrictions on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail. There cannot be any doubt that section 37 of the N.D.P.S. Act is not applicable to case where an accused has already been convicted and when he files appeal and seeks suspension of the sentence.
3. The question whether a person convicted and sentenced under the N.D.P.S. Act is entitled to get the sentence suspended during the pendency of the appeal cannot be determines having recourse to section 37. Stand of the Public Prosecutor is that in view of section 32A of the N.D.P.S. Act the appellate court has no power to suspend the sentence during the pendency of the appeal. Section 32A reads:
"Not with standing anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974), or any other law for the time being in force but subject to the provisions of section 33, no sentence awarded under the Act (other than section 27) shall be suspended or remitted or commuted. "
Section 33 of the N.D.P.S. Act provides that section 360 of the Cr. P.C. or the Probation of Offenders Act. 1958 shall not apply to any person convicted of an offence under the Act unless such person is under eighteen years of age or that the offence for which such person is convicted is punishable under section 26 or section 27. Section 26 deals with punishment for certain acts by licensee or his servants. Section 27 is concerned with the punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance or consumption of such drug or substance.
4. Petitioner's contend that section 32A has no application so far as the appellate court is concerned as it is obviously intended to meet a situation of suspension, remission or commutation of sentence by the Government as provided under sections 432 and 433 of the Cr. P.C. Section 432 empowers the appropriate Government to suspend or remit sentence Section 433 enables the appropriate Government to commute the sentence. In other words, petitioners stand is that section 32A does not fetter the powers of the appellate Court to suspend the sentence pending appeal.
5. From a reading of section 32A of the N.D.P.S. Act it is not p
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
